The mainstream media are breathless in their adoration of prenuptial agreements. Why is it that we’re hearing so much about them, when almost nobody actually uses them? In a word, lawyers.
The family court system in the U.S. is, by and large, remarkably fair and downright logical. Despite songs like “She Got the Gold Mine; I Got the Shaft,” my decades of family law experience have taught me that those cases where one party “gets everything” are rare indeed. When I’ve seen them, it’s because there’s not much “everything” left, and the judge perceives that only of the spouses can be trusted to conserve the little wealth that’s left.
The vast majority of divorce court rulings cluster loosely around fairness. Yes, the world is full of people who believe the judge screwed them, but most of the time there’s a party on the other side who feels screwed too. And it’s the peculiar nature of our adversarial divorce system that both parties tend to enter the process with an optimistic expectation about the outcome, so they often emerge disappointed. Judges don’t have enough time to get to know the parties, and their rulings often leave both parties feeling cheated.
Prenuptial agreements by their nature attempt to predict years in advance what will be fair at some point in the future. A family court judge, on the other hand, has the benefit of recent facts and experience. In general, prenuptial agreements are designed to keep a poor spouse poor, even after he or she (more often, she) has sacrificed a career or compromised earning ability for the sake of the marriage or raising a family. Prenuptial agreements are much more likely to bring about unfairness than fairness.